MGT 1040 - Final

Burglary - elements

* Traditional: breaking and entering the dwealing of another person at night with the intent to comit a felony * Modern: Doesn't have to be at night Can be any secured structure (locked car, corporation, etc.) Entering without permission

Jurisdiction

- "Juris" (law) "diction" (to speak) is the power of a court to hear a dispute and to "speak the law" into a controversy and render a verdict that is legally binding on the parties to the dispute

Res Ipsa Loquitur

- "The facts speak for themselves" - Ex. Someone goes in for back surgery, they then find out that there was a rag left in their back. Only someone in the operating room would have been capable of doing that.

Commerce Clause

- "substantially affect interstate commerce" - Commerce Clause today: the breadth of the commerce clause permits the national governments to legislate in areas in which congress has no explicitly been granted power * Authorizes the national government to regulate virtually any business enterprise including the internet-based - You at least need to be selling something interstate to use the Commerce Clause

in personam jurisdiction

- (personal jurisdiction) over any person or business that resides in a certain geographic area

Embezzlement - elements

- A person who is entrusted with another person's property fraudulently appropriates that property - The moment you convert money into your account you are embezzling

Unilateral contract - modern view versus traditional view for revocation of offer

- A promise for an act. Offeree can accept only by completeomg the contract performance (mowing a lawn for $100) - Traditional: an offer may be revoked at any time before it is accepted/completed - Modern: an offer cannot be revoked once performance has begun

Privileges & Immunities Clause

- A state must treat residents and non-residents equal, unless there is a good reason why not - Prevents state from imposing unreasonable burdens on citizens - particularly with regard to basic and essential activities

Elements of negligence, reasonable person standard

- All 4 of these MUST be present! * Duty: defendant owed plaintiff a duty of care * Breach: defendant breached that duty * Causation: defendant's breach caused the injury * Damages/Harm: plaintiff suffered legal injury - We owe a duty to every person to be responsible!

Effect of breach: minor v. material

- Any breah can get you damages

Alternative Dispute Resolution Pros/Cons

- Are inexpensive, relatively quick and leave more control with the parties involved - Overall disadvantages: * Results may be unpredictable because arbitrators do not have to follow precedent or rules of procedure or evidence * Arbitrators do not have to issue written opinions * Generally, no discovery available

Motions: Summary judgement

- Asks a court to grant a judgment for moving party without a trial - Facts are viewed in the light most favorable to the other party - Admissible evidence is submitted - Only works when there is no fight over the facts - "Court, you get the pleadings AND extra evidence"

Assignment/delegation - requirements, who can you sue?

- Assignment: the transfer of contractual rights * The contract is completely intact, it's just been transferred - Delegation: the transfer of contractual duties - Who can you sue? BOTH!!

Natural Law School

- Assumes law, rights and ethics are based on universal moral principles inherent in nature discoverable through human reason - The oldest view of jurisprudence dating back to Aristotle - The Declaration assumes natural law, or what Jefferson called "the Laws of Nature"

Mistake of fact

- Bilateral: mistakes made by both parties. Usually the contract is voidable - Unilateral: a mistake that is made by one party. Usually the contract is enforceable - If the other party knew about the mistake of fact, the contract could be unenforceable - If the mistake is due to a mathematical mistake, it may be unenforceable. Such as an addition error * Usually need to show material fact that it was a mistake

Undue influence

- Can arise from a number of fiduciary relationships (parent-child, husband-wife, teacher-student, etc.) - The party being taken advantage of does not, in reality, exercise free will in entering into a contract - The existence of a fiduciary relationship alone is insufficient to prove undue influence - When a dominant party in the fiduciary relationship benefits from that relationship, undue influence arises

Capacity: Minors

- Can disaffirm at any time until majority, then they have a reasonable amount of time to disaffirm - Adults cannot disaffirm a contract with a minor - Exceptions to disaffirmance * Misrepresentation of age: if a minor claims they are older than they really are, they may be held responsible/liable * Contracts for necessaries: a minor who enters into a contract for necessaries may disaffirm the contract but remains liable for the reasonable value of the goods

Burdens of proof in civil & criminal cases

- Civil cases: preponderance of the evidence - Criminal cases: beyond reasonable doubt

Battery (as a tort)

- Completing the act, following through with the hit. Harmful, offensive or unwelcome. - Defenses to Assault and Battery: * Consent * Self-Defense (defending yourself or others from real or apparent danger) * Defense of others (reasonable force) * Defense of property NEVER USE DEADLY FORCE

Mistake of value

- Concerns the future market value of quality of the object of the contract - Normally enforceable, regardless of unilateral or bilateral

Capacity: Intoxication

- Contracts can be voidable OR valid - Even if intoxication was voluntary, if the individual lacked mental capacity to understand what they were doing the contract may be voidable - In order for this to be a valid argument, they must prove that the intoxication severly impaired their judgement and reason to comprehend what they were etting into - If they DID know what they were doing, despite being intoxicated, the contract is enforceable - Rather hard to prove that intoxication impaired their judgement

Defenses - self-defense/defense of others/defense of property, entrapment, duress

- Defense of property: you CANNOT use deadly force to defend property - Defense of others/self: you can use deadly force if reasonably belief of imminent death or serious injury - Entrapment: (1) cannot have been predisposed, (2) government has to set the trap, (3) government has to push you in

No duty to rescue/warn; Good Samaritan acts

- Duty to Rescue: we have NO duty to rescue! UNLESS there is a special relationship of trust. If you do decide to rescues, you must do so reasonably.

Motions: Motion to Dismiss

- Either party (normally defendant) can ask the court to dismiss the case if the pleadings fail to show a legal claim, or - No proper service of process

The Historical School

- Emphasizes the evolutionary process of law - Concentrates on the orgins of the legal system - Law derives its legitmacy and authority from standards that have withstood the test of time - Good laws will stand the test of time

Trespass to land - requirements & exceptions/defenses

- Entering or causing something to enter land above, below or on land without permission

Freedom of Religion: Establishment Clause, Free-Exercise Clause, 3 Plastic Reindeer Rule

- Establishment Clause: prohibits government from establishing a state-sponsored religion, or passing laws that favor one over the other * Can't have an official United States religion * Free Exercise Clause: free exercise of religion * Employers must reasonably accommodate beliefs as long as employee has sincerely held beliefs - 3 Plastic Reindeer Rule: you are allowed to have religious symbols as long as there are nonreligious symbols as well (on government property)

Preemption (2 times when it occurs)

- Federal government creates a federal agency to oversee an area (e.x. OSHA) - Federal government passes so many rules the state can't do anything about it

State v. federal

- Federal law will prevail over state law - Any/all powers not granted to the federal governement are reserved to the state - The feds always win!

Statute of Frauds (5 types of contracts that must be in writing to be enforceable)

- Five contracts required in writing: * Contracts involving land * Contracts that cannot be erformed within one year after the date the contract was formed * Seconday contracts, such as promises to answer for the debt/duty of another * Promises made in consideration of marriage * Contracts for the sale of goods over $500 - One-Year rule: the contract must be performed within one year of the day after the contract was formed - Collateral promises: A has a contract with B. If A failed to pay B, then C says they will pay B only if A fails to pay B. The contract between C and B must be in writing.

Types of attorney-fee agreements

- Fixed fees (for specific services) - Hourly (based on many different factors) - Contingent fee (attorney gets %)

Standing to sue

- Having sufficient stake in a matter to justify seeking relief through the court system - YOU have to be the one to have been hurt - You have to be the one to have been HURT - Can't be a hypothetical situation

"acceptance after rejection" - rule

- If acceptance is sent after rejection, whichever is received first is given effect

Mailbox Rule

- If the authorized mode of communication is the mail, then an acceptance becomes valid when it is placed in the mail

Effect of destruction of subject matter on an offer & on a contract

- If what is being offered is destroyed, there is no longer an offer - They do not have to provide notice of the termination

Contributory/Comparative Negligence (Pure Comparative)

- If you are involved in a negligence situation, we are going to look are everyone's actions - Comparative negligence computers liability of Plaintiff and Defendant and apportions damages - Pure Comparative negligence states: allows Plaintiff to recover even if his liability is greater than that of Defendant. * Plaintiff is 70% at fault. The Defendant is 30% at fault. Plaintiff only walks away with 30% of the award.

Implied-in-fact contracts/quasi contracts

- Implied-in-fact contracts: A contract that is implied from the onduct of the parties. If one party habitually break contract (such as changing specifications of a project but pays for the differences every time), and they refuse to pay for the differences one time when they break the contract, they are held responsible based off o their previous actions - Quasi contracts: * Fake contracts, "as if" contracts * Usually are imposed to avoid the unjust enrichment of one party at the expense of another * You can't have a quasi contract if you have a real contract!!

Wrongful Interference with Contract

- Intentionally induces person A or B to breach the contract and you benefit from the breach

Legal Realism

- Jurisprudence that holds law is not simple a result of the written law, but a product of the views of judicial decision makers, as well as, social, economic, and contextual influences - A little bit of everything

The Positivist School

- Law is the supreme will of the State that applies only to the citizens of that nature at that time - Law, and therefore rights and ethics, are not universal. The morality of a law, or whether the law is "bad or good," is irrelevant - Whatever is the law, you don't question it - you follow it

Mens rea & actus reus

- Mens rea: guilty mind - Actus reus: guilty act - BOTH are needed to be criminally liabel

Fraudulent misrepresentation: elements, expert opinions, puffery, silence, latent defects

- Misrepresentation of material fact - Intent to induce another to rely - Justifiable reliance by innocent party - Damages as a result of reliance ** The only time and opinion can be used as a bases of a fraud is when it comes from an expert in the area!!

Contributory/Comparative Negligence (Modified Comparative)

- Modified Comparative negligence states: percent of damagers Plaintiff causes herself are subtracted from the total award. * 50% rule: plaintiff recovers only if liability is less than 50% * 51% rule: plaintiff recovers nothing if liability is greater than 50%. (So it has to be under 51%)

Slander per se/public figures defamation

- No proof of damages is necessary when the statement is involves: * Loathsome disease * Business improprieties * Serious crime * Serious sexual misconduct - Public figures * MUST SHOW "actual malice". A statement was made with either knowledge of falsity or reckless disregard for the truth

Procedural Due Process (notice & hearing)

- Notice - Opportunity to be heard - Procedures depriving an individual of her rights must be fair and equitable - Constitution requires adequate notice and a fair and impartial hearing before a disinterested magistrate - Notice and hearing before you can take away life, liberty, and property

Bribery - elements (when it occurs)

- Offering to give something of value in an attempt to get something in return - Occurs the second the bribe is offered

Duty of Landlords/Businesses (negligence)

- Old rules: the land owner is NOT responsible for damages to the trespasser - New rules: the land owner has a reasonable duty to warn people about non-obvious dangers

Ambiguous contracts: Parol evidence, contract interpretation

- Parol evidence: testimony or other evidence of communications between the parties that are not contained in the contract itself * So, if what you sign is intended to be a complete and final statement of the agreement, parol evidence will not be allowed - Contract interpretation: hand written > preprinted

Motions: New trial/Judgement N.O.V.

- Post-trial motion: new trial * A judge will only grant a motion for a new trail if they believe that the jury was in error and that it is not appropriate to grant judgment for the other side - Post-trial motion: Judgment N.O.V. * "Notwithstanding the verdict" * Granted only if the jury's verdict was unreasonable and erroneous

Consideration: past consideration, unforeseen difficulties

- Pre-existing duty: when someone already has the legal duty to do something, that is not sufficient consideration. If someone is bound to do a certain duty for one contract, that uty cannot serve as a consideration fo a second contract - Unforseen difficulties: if something completely unforeseen causes a change of duties (such as having to use special equipment to get an unforeseen object out of the way) the court may say that pre-existsing duties do not apply here - Illusory promises: remember the big "IF". For example, "You all have worked so hard, IF I think you gys have done well enough, I'll give you all A's" - Option to cancel: "I'll agree to hire you, but I have the option to cancel at anytime" is an illusory contract

Promissory Estoppel

- When someone relies on your offer/promise and you did not follow through, you may be held liable for that and they can recover a little bit. - Elements required for promissory estoppel: * Must be a clear and definite promise * The promisor should have expected that the promise would ely on the promise * The promise reasonably relied on the promise by acting or refraining from some act * The promisee's reliance was definite and resulted in substantial detriment * Enforcement of the promise is necessary to avoid injustice

Conversion - elements

- Wrongful possession or use of property without permission (theft, keeping someone's stuff) - In their mind, they don't have to 'intend' to take the item because they thought it was theirs to begin with

Defamation - elements, public figure, etc.

- Wrongfully hurting someone's good reputation - A false statement of fact - Not made under a privilege - MUST BE Communicated to a 3rd party - Causes damages - Types: * Libel - making false statements in written or other permanent form (ex. Digital recording) * Slander - making false statements orally - Damages: * Libel: compensation for disgrace, dishonor, humiliation, injury to reputation and emotional distress * Slander: must prove special damages (actual economic loss)

Larceny - elements

- Wrongfully taking and carrying away someone's personal property with the intent to deprive them permanently - No force or fear (ex. pick-pockets)

Specific performance - what is it?

- You HAVE to follow through with the contract

Offer "to remain open"

- You can revoke it any time before it is accepted - Exceptions: irrevokeable contracts

Receipt of stolen goods - requirements for liability

- You only need to know or should have known the goods were stolen

Alternative Dispute Resolution: Mediation

- a neutral third party acts as a mediator and works with both sides in the dispute to facilitate a resolution - Mediator, often a judge(not yours) or a retired judge - Mediator does not make a decision, they can suggest one - Advantages: few rules, customize process, parties control results (win-win) - Disadvantages: mediator fees, no sanctions or deadlines

Alternative Dispute Resolution: Arbitration

- an arbitrator (a neutral third part of a panel of experts) hears a dispute and imposes a resolution on the parties - Unpredictable - Courts are not involved in arbitration - Neutral 3rd party renders a legally-binding decision; usually an expert or a respected governement official

Effect of death on an offer & on a contract

- cancels the offer/contract immediately

Intentional Infliction of Emotional Distress - requirements

- physical manifestation - They have to provide some kind of proof of the distress (such as an ulcer, depression, etc.)

in rem jurisdiction

- power to decide issues relating to property, whether the property is real, personal, tangible, or intangible - A court generally has in rem jurisdiction over any property situated within its geographical boarders - Wherever "the thing" is, is where you should go to fight over it

Trespass to personal property

- the intentional interference with another's use or enjoyment of personal property without consent or privilege

Alternative Dispute Resolution: Negotiation

- the parties attempt tos ettle their dispute informally with or without attorneys to represent them - Informal - Differences are discussed with the goal of "meeting of the minds" in resolving the case - Successful negotiation involves thorough preparation, from a position of strength

Jurisprudence

- the science or philosophy of law

False Imprisonment - elements, Shopkeeper Exception

Confinement or restraint - Of another person's activities - Without justification - Shopkeeper's exception: They can detain reasonably detain customers if there is probably cause * Reasonable amount of time; reasonable manner

A crime can be committed only against persons (T/F)

False

A person sued for a tort can be punished with jail time (T/F)

False

Actus reus refers to the mental state necessary for criminal liability (T/F)

False

An "ordinary person" standard determines whether allegedly negligent conduct resulted in a breach of a duty of care (T/F)

False

An applicant cannot register a trademark on the basis of an intention to use the mark in commerce (T/F)

False

Being morally pressured into staying at a location may constitue false imprisonment (T/F)

False

Business owners have no duty to exercise reasonable care to protect invitees (T/F)

False

Corporate officers can be liable only for crimes from which they personally benefit (T/F)

False

Patent infringement occurs only if an invention is copied in its entirety (T/F)

False

Patent protection begins on the date that a patent is issue (T/F)

False

To be liable for an intentional tort, a defendant must have had a harmful motive (T/F)

False

Under the theory of negligence, the duty of care requires one person to come to the air of another in "peril." (T/F)

False

A criminal case must be proed beyong a easonable doubt (T/F)

True

A marketing technique can be a trade secret (T/F)

True

Copyright protection is automatic - registration is NOT required (T/F)

True

If one person's act harms another, there may be liability for negligence even if the actor did not intend the harm (T/F)

True

Robbery involves the use of force or intimidation, but larceny does not (T/F)

True

The word "tort" is French for "wrong." (T/F)

True

Under the theory of negligence, harm must be foreseeable to be considered the proximate cause of an injury (T/F)

True

You can defend yourself with reasonable force (T/F)

True

Writ of Execution

an order directing the sheriff to seize and sell the defendant's nonexempt assets, or propety. The proceeds are used to pay the damages owed

Search warrants - probable cause, exceptions, business search warrants/exceptions

- Probable cause: the officers must have trustworthy evidence that would convince a reasonable person that the proposed search or seizure is more likey justified that not - Requires search warrants to have "probable cause" * General searches through personal belongings are illegal * Search warrants must be specific -Main exceptions when search warrants aren't needed * Inventory, Search incident to arrest, Evanescent evidence (evidence that's disappearing), Consent (only you can concent to your area/stuff) - Searches of businesses - more exceptions to warrant requirement * Generally business inspectors must have warrant * They don't need probable cause * Warrantless searches: Contaminated/spoiled food, Liquor/alcohol, Guns, Mining, airline travel

Substantive Due Process

- Protects an individual's life, liberty, or property against certain government actions regardless of the fairness of the procedures used to implement them - Limits what the government may go in its legislative and executive capacities - Focuses on the content or substance of legislation - Laws limiting fundamental rights (speech, privacy, religion, etc.) must have a "compelling state interest" - Laws limiting non-fundamental rights require only a "rational basis"

Freedom of Speech - limitations, expressive speech

- Reasonable restrictions - If restriction is content neutral, restrictions must target some societal problem - not to primarily suppress the message - Corporate political speech is heavily protected - Commercial speech is not as protected as corporate speech. Two requirements for restriction: * Substantial government interest * Go no further than necessary

Remedies at Law (damages)

- Remedies at Law: land, items of value (chattel), money * Damages- and ammount given to a party whose legal interests have been injured

Remedies In Equity (specific performance, injunction, rescission)

- Remedies in Equity: equitable remedies * Specific Performance- ordering a party to perform an agreement as promised * Injunction- ordering a party to cease engaging in a specific activity or undo some wrong or injury * Rescission- the cancellation of a contractual obligation

Power to tax

- Requires uniformity in taxation among the states, and thus Congress may not tax some states while exempting others - Must be reasonable and uniform

Miranda rights

- Right to council, right to silence

Police Powers

- Safety first! - Regulatory powers of States - Ensures that any judicial decision with respect to such property rights will be honored and enforced in all states * E.g. if you are divorced in Arizona, New Mexico has to recognize it

Fundamental rights - what are they & what is the test for constitutionality of laws

- Speech - Privacy - Religion - Travel - Voting - Marriage - Family - Compelling state interest (usually concerned for safety) to infringe on these rights

Stare Decisis/Precedent

- Stare Decisis: "to stand on decided cases" * Decisions made by a higher court arebinding on lower courts * A court should not overturn its own precedents unless there is a compelling reason to do so -Precedents: a decision that furnished an example or authority for deciding subsequent cases involving identical or similar legal principles or facts

Robbery - elements

- Taking money or personal property by force or fear - Force, fear, aggression - Aggravated => deadly weapon used

Corporate criminal liability

- The corporate officer s responsible for what their employees are doing. They have to know what their employees are doing, their acts

Forgery - elements

- The fraudulent making/altering of any writing that changes the legal rights/liabilities of another person

Venue

- The most appropriate location for the trial - Generally wherever the injury/crime occurred - Different from jurisdcition, as long as everyone agrees, you can change venue

Mirror Image Rule

- The offeree's acceptance must match the offeror's offer exactly. Any change in the acceptance is a rejection and counteroffer - Must agree unequivocally

Assumption of the Risk

- The plaintiff has knowledge of the risk, and voluntarily engages in the act anyways (skydiving, etc.) it can be expressed or implied.

Third-party beneficiary contracts, requirements

- Think: life insurance

Diversity of Citizenship

- Two requirements: * Plaintiff and Defendant are from two different states * Amount in question is more than $75,000

Capacity: Mentally incompetent

- Void contracts: a court had previously determined a person is mentally incompetent. Any contract made with them after this judgement is void. Only the guardian can enter into a contract - Voidable contracts: if a person was mentally incompetent when they entered into a contract and they were not previously deemed mentally incompetent by a court, the contract may be voidable. If they lacked mental capacity to know what they were getting into, it can only be voided by the incompetent person, not the other party - Valid contracts: at the time the contract was formed if the person had the mental capacity to understand what they were doing, it is a valid contract. Only if they have not been previously deemed incompetent

Voir Dire; jury selection, peremptory challenges & challenges for cause

- Voir Dire: the jury selections process * Attorneys ask prospective jurors oral questions to determine whether a potential jury member is biased o has any connection with a party to the action or with a prospective witness - Jury selection: usually 6 people, but can be 12 people - Peremptory challenges: ask an individual not be sworn in as a juror without providing any reason - For Cause challengese: provide a reason why an individual should not be sworn in as a juror

Dismissal "with prejudice" vs "without prejudice"

- When a Motion to Dismiss is granted, there are two responses: * "with prejudice" meaning that there is no chance to re-do this case * "without prejudice" meaning that this case can be tried again